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Non-biological surrogate declared “Mother”

Timothy Kincaid

January 2nd, 2010

Those looking for an excuse to justify the kidnapping of little Isabella by Lisa Miller (other than bald bigotry) like to make the distinction that Jenkins isn’t genetically related to Isabella. It will be curious to see if that “reason” holds consistent in another custody case. (New York Times)

A New Jersey judge has ruled that a gestational surrogate who gave birth to twin girls is their legal mother, even though she is not genetically related to them.

In the New Jersey case, the surrogate, Angelia G. Robinson, agreed to have the children in 2006 for her brother, Donald Robinson Hollingsworth, an accountant in Manhattan, and his spouse, Sean Hollingsworth. The embryos were created from anonymous donor eggs and fertilized with sperm from Sean Hollingsworth.

In the language of Ms. Miller, allowing Ms. Robinson rights is like turning the children over to the milkman. But somehow, just somehow, I suspect the sexual orientation of the girls’ fathers might create exceptions in the minds of Miller’s supporters.

Because I very very much doubt that biological connection had much at all to do with the reason they support Lisa Miller in the first place. And arguments seeking to hide that their basis is in anti-gay animus don’t stand up well to principle.



January 2nd, 2010 | LINK

Are there any more details on this case? They say she changed her mind because she says in retrospect she was “coerced” into it, but it doesn’t say how.

It seems pretty clear to me that unless that part is true, she’s just breaching her contract and certainly has no biological claim to them.

January 2nd, 2010 | LINK

As a parent who has navigated contentious custody-related court battles, the last paragraph of the NYTimes piece says a lot:

Since 2007, the twins have shuttled back and forth between the Hollingsworths’ home and Ms. Robinson, who has three parenting days a week. A final decision on custody is expected after the trial this spring.

So, here’s the approximate timeline:

2005: Robinson, her brother, and his husband, put together a surrogacy agreement. (The Times says 2006, which works only if they all agreed on New Years day, and the pregnancy started within weeks.)

October 2006: Twin girls are born.

March 2007: Robinson filed a lawsuit seeking custody. As an interim measure, similar to divorce filings, the judge awards Robinson 3-day-per-week physical custody.

December 2009: Judge Schultz issues an order specifying that Robinson is the mother of the twins. At least one writer notes that

Judge Schultz (according to the limited information about the opinion that has been released) did not rule that the Hollingsworths were not the fathers. Rather, he only ruled that Robinson was the mother. The two are not mutually exclusive, particularly in a case involving two fathers and a gestational carrier.

The same writer notes that Judge Schultz is no stranger to controversial rulings which have been reversed on appeal.

There’s a lot of complexity here which is not yet available to us on the outside. That’s actually a credit to the parties on both sides… apparently, significant, complex, developments have been playing out quietly for almost 3 years.

Now, someone on one side (or maybe, both sides) has decided that it’s time to jump the shark and call in national media.

Regan DuCasse
January 2nd, 2010 | LINK

There was a case here in CA where a couple donated their own egg and sperm specimens and contracted a surrogate to carry the pregnancy, who was not biologically related to the child.

The couple were white and asian respectively and their surrogate was a black woman who sued for custody and parental rights to the child.

She lost.

Because she had a contract that specified her as a gestational surrogate (totally unrelated to either parent), she had signed to relinquish the child to the biological parents for whom she had the child.

This seems like a similar case. It was recommended after this situation that people seeking surrogates do so among people they trust, but the point of being a GESTATIONAL surrogate, not a PARENTAL surrogate is very specific too.
You are a body engaged for a purpose, you’re not there to BE the parent, therefore your purpose can’t supercede who you CONTRACTED to.

I guess this judge didn’t see the precedent already set in law for gestational surrogacy.
For this woman to get these sorts of rights, smacks of anti gay animus too.

January 2nd, 2010 | LINK

Eeech. On the one hand, it may well be homophobia that led the judge to rule that Ms. Robinson was the mother…on the other, I’m deeply uncomfortable with the idea of a court taking someone’s children away for reasons other than mistreatment.

Hazumu Osaragi
January 2nd, 2010 | LINK

The beauty of the compartmentalization of the conservative, Right Wing Authoritarian mind is that in each situation the rules that support the forgone conclusion can be chosen, and other rules which would apply in other situations but would only become messy and inconvenient in this particular instance can be ignored.

In the Jenkens/Isabella/Miller situation, replace Jenkins with an infertile male as the other parent. The RWA conservatives apply the “Every child needs a mother AND a father” rule.

If it weren’t so cruel, I’d love to tweak the experiment to see what they say where the father is infertile, the mother has the child by artificial insemination with anonymous sperm, she divorces him because she turns lesbian, and he (remarried) tries to get full custody of the child. I bet the RWA’s would side In This Instance with the father, even though his genetic input is zilch, because his family is the RWA ideal.

January 2nd, 2010 | LINK

Crap. Does that mean my oven owns the cupcakes I just took out?

January 2nd, 2010 | LINK

Is your oven a sapient being, TJ?

January 2nd, 2010 | LINK

Since the child is the product of a donated egg I can see that Ms. Robinson would have to be (for all intents and purposes) considered the legal mother of these girls, but that should still not give her any legal claim to them as far as custody goes. She is not genetically related to them in any way and she had no hand in parenting them for the first 5 months of their life.
For her to file for custody would be like the nurse that cared for them in the hospital filing for custody.

I could see a judge perhaps granting joint or total custody to a mother who was genetically related to the kids, but I don’t see how they could justify granting this woman custody (if it comes to that with the final decision) when there has been no reported mistreatment of the girls and the woman filing for custody is not biologically related to them and was not a parent to them prior to her filing for custody.

And what is this crap she’s trying to sell about being “coerced” into it. How do you get coerced into this situation? I mean I could buy it if she was some young girl who needed the money and was poor,had no family support & turned to this “job” out of desperation, but she agreed to do this of her own free will for her brother and brother-in-law. She went to a fertility clinic, allowed herself to be inseminated,carried a child to term and only 5 months AFTER the birth did she attempt to get custody. Did they hold a gun to her head? Did they threaten to kill her if she didn’t agree? No. They asked, she agreed and she signed a contract relinquishing all claim to those children.

I really hope the parents (the male ones) do not lose their kids in the end. What she has done has just confused those kids and made their lives 100 times harder than they had to be.

The Miller/Jenkins case is a different thing altogether,imo because they were in a committed relationship when their daughter was born, planned to raise her together and Ms. Jenkins was an active parent to the child for over a year before the split. Thought she may have no biological connection to her she was acting as a parent to that child and had formed an emotional bond with her.

Richard W. Fitch
January 3rd, 2010 | LINK

Kristie – Since this matches the patriarchal view of birthing, consider this. You have 40 acres of fertile farmland. We enter a contract where I provide the seed and pay you to tend the field and when the harvest arrives, give me the yield. You are paid for all your work and I receive the fruits of that work. Are you still the *legal* owner of that harvest?? Even share croppers are only entitled to a contracct portion of the harvest, not all.

January 3rd, 2010 | LINK

Richard, my comments in regard to Ms.Robinson’s “motherhood” were only in reference to the fact that there has to be SOME name on the birth certificate to indicate who gave birth to these children. That is where, in my opinion, Ms.Robinson’s legal connection to these children should end.

As to your analogy, no I don’t think I would still be the legal owner of the harvest, nor do I think Ms. Robinson should be considered a “legal owner” of these girls. She gave birth to them, her name would be listed as “mother” on their legal birth certificates, but she clearly gave up her legal rights to them when she entered into the original contract.

Just because someone is considered someone’s mother or father in a legal sense doesn’t mean they should get custody of them. That was my point.

Richard W. Fitch
January 3rd, 2010 | LINK

Kristie – After a quick ‘Google’ and Wiki search, I realize the issue is much more complicated than initially apparent. The laws vary vastly from state to state in the US just as do marriage/civil union laws. This may be one rare class of cases where the birth certificate would list the ‘mother’ as anonymous, since that seems to be the intent of the egg donor. In other cases like (?? famous couple ??) where the biological parents are known, they would be listed on the document rather than the gestational surrogate. As emotionally attached as the sister may be, her rights should not excede the terms of the contract into which she entered. It is very difficult to believe, as others have stated, that she could have in any way been ‘forced’ to be the surrogate.

January 4th, 2010 | LINK

What might be important is that there is a separate malpractice lawsuit where she seeks millions of dollars from the IVF clinic and the lawyer who wrote the contract. Also, the parents gave her a load of cash to switch her sexual orientation from lesbian to straight. Much more than it seems.

Throbert McGee
January 5th, 2010 | LINK

Hypothetical case:

A married heterosexual man whose wife is completely infertile (she can neither produce healthy eggs nor safely carry a pregnancy to term) contracts with his sister for her to be the gestational surrogate, using the man’s sperm and an anonymous donor egg. After the baby is born, the sister reneges on the contract and attempts to claim custody rights as the gestational/birth mother. In other words, a case that EXACTLY parallels this one, biologically speaking, except that the legal spouse of the genetic father is a woman, and not a man.

Can anyone here really claim to predict with certainty that this hypothetical case would’ve turned out differently than the current dispute between Ms. Robinson and Mr. Robinson?

Throbert McGee
January 5th, 2010 | LINK

Side question, for anyone who’s confident that “gestational motherhood” is of minimal legal significance, and should clearly be trumped by genetic fatherhood when there is a contractual dispute:

Does this mean you’d be happy to scratch maternal uterine effects off the list of potential co-factors that may influence sexual orientation?

Or would you insist that “gestational motherhood” should only matter when “our LGBT side” is served by it mattering, but not when it’s an inconvenience for us gay people?

Because I don’t see any consistency in arguing that birth-motherhood has objective, scientific bearing when the question is “Why are some people born gay?”, but that we are obligated to ignore it because of a surrogate-uterus contract that a woman signed.

January 5th, 2010 | LINK

I’d also like to point out the (hopefully) obvious: gestating is work. It’s not the same as “parenting,” but it’s not less than either.

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